Western Union Telegraph Co. v. Choteau

• Decision Date: 09 May 1911
• Parties: WESTERN UNION TELEGRAPH CO. v. CHOTEAU.
• Court: Oklahoma Supreme Court

115 P. 879

28 Okla. 664, 1911 OK 216

WESTERN UNION TELEGRAPH CO. v. CHOTEAU.

Supreme Court of Oklahoma

May 9, 1911

Syllabus by the Court.

In the absence of statute, damages are not recoverable for mental distress alone, caused by negligent delay in delivering a telegram.

Error from District Court, Craig County; T. L. Brown, Judge.

Action by John Choteau against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error. Reversed.

Williams J., dissenting.

George H. Fearons, Shartel, Keaton & Wells, and W. H. Kornegay, for plaintiff in error.

Charles B. Rogers, for defendant in error.

DUNN J.

This action was originally brought in the United States court for the Northern District of the Indian Territory on April 29 1905, by John Choteau, defendant in error, against the plaintiff in error, the alleged cause of action being predicated upon the negligent delivery of the following prepaid telegram, announcing the serious illness of plaintiff's father: "William very low: notify Ed and Julia." It is conceded that as a result of the negligence of the company in making delivery, plaintiff was deprived of the opportunity of taking a train which arrived at Kansas City, Missouri, where his father was, in time to have seen him prior to his death. On the trial to a jury, a verdict was returned for plaintiff, to reverse which the cause has been duly lodged in this court. A number of questions have been argued by counsel, but the decision of the following will determine the controversy: May a party to whom a prepaid telegraphic message is sent, announcing the serious illness of his father, recover substantial damages solely for the mental distress occasioned by negligence on the part of the company in its delivery, where such negligence results in denying him an opportunity of attending upon his father in his last illness, and seeing him prior to his death.

The "mental anguish" doctrine in telegraph and other cases throughout the United States has been a fruitful field of discord. Not only are courts of different jurisdictions at direct variance with each other, but some of the courts which allow recovery have been at cross-purposes with themselves in their adjudications, and in all numerous instances of dissent and dissenting opinions without reference to the holding have been made and filed. The courts which have held against the allowance of such damages have found a ready reason for this discord in the fact that such damages were unknown at common law, and hence the courts which have adopted the innovation have not enjoyed the benefit, guidance, and support of its rules. No court had ever declared and no legal text-writer or author had ever declared for damages in such cases until the year 1879, when Shearman & Redfield's work on Negligence was issued containing a statement of the opinion of the authors that where by cause of delay or total failure of delivery of messages relating to domestic and personal matters suffering followed, they did not think that the telegraph company in fault ought to escape with mere nominal damages because such delay was often productive of injury to the feeling's which could not be easily estimated in money but for which a jury ought to be at liberty to award fair damages. No authority was cited to support this declaration, and we think it must be conceded that none existed.

In 1881, the Supreme Court of Texas, in the case of So Relle v. Western Union Telegraph Company, 55 Tex. 308, 40 Am. Rep. 805, allowed substantial damages in a case similar to the one at bar, citing in support thereof the Section from the work on negligence above referred to, and two other cases, neither of which support the proposition involved in the case, but both of which are sound on the doctrine they do announce. This was the beginning of the doctrine which has spread into some of the other states until counsel, to sustain their claim for damages in this court, are able to cite authorities not only of Texas, but of Alabama, Louisiana, Washington, Nevada, Tennessee, North Carolina, Iowa, and Kentucky. Cases so relied on may be noted as follows: Western Union Telegraph Company v. Crumpton, 138 Ala. 632, 36 So. 517; So Relle v. Western Union Telegraph Company, 55 Tex. 308, 40 Am. Rep. 805; G., C. & S. F. Ry. Co. v. Levy, 59 Tex. 542, 46 Am. Rep. 269; Stuart v. Western Union Telegraph Company, 66 Tex. 580, 18 S.W. 351, 59 Am. Rep. 623; Western Union Telegraph Company v. Jones, 81 Tex. 271, 16 S.W. 1006; Graham v. Western Union Telegraph Company, 109 La. 1069, 34 So. 91; Davis et al. v. Tacoma Ry., etc., Co., 35 Wash. 203, 77 P. 209, 66 L. R. A. 802; Barnes v. Western Union Telegraph Company, 27 Nev. 438, 76 P. 931, 65 L. R. A. 666, 103 Am. St. Rep. 776; Wadsworth v. Western Union Telegraph Company, 86 Tenn. 695, 8 S.W. 574, 6 Am. St. Rep. 864; Young v. Western Union Telegraph Company, 107 N.C. 370, 11 S.E. 1044, 9 L. R. A. 669, 22 Am. St. Rep. 883; Mentzer v. Western Union Telegraph Company, 93 Iowa, 752, 62 N.W. 1, 28 L. R. A. 72, 57 Am. St. Rep. 294; Chapman v. Western Union Telegraph Company, 90 Ky. 265, 13 S.W. 880. It smacks considerably of rethreshing old straw to again take up and consider at length the arguments pro and con raised by counsel and involved in the decisions presented to us on this question, but we have been given the advantage of able briefs and oral arguments, and as this is the first time the question has been presented to this court since its organization, we feel a rather extended examination of the decisions and a presentation of our conclusions thereon may not be amiss.

The reasons adduced in support of the rude for allowing damages are stated by Judge Thompson in his work on Negligence, vol. 2, § 2477, as follows: First. That by the terms of the message, the company is advised, in a general way, of its importance to the addressee and of the consequences which may inure to him from its failure promptly to transmit and deliver it, so as to bring the case within the rules of Hadley v. Baxendale, 9 Exch. 341, 354, s. c. 26 Eng. Law & Equity, 398. Second. That the principles of the common law award damages predicated upon an injury to the feelings in other cases, such as an assault and battery, the unlawful expulsion, of a passenger from the vehicle of a common carrier, the seduction of a daughter, etc. Third. That a rule which denies the recovery of damages predicated on injury to the feelings in the case of the default of a telegraph company in the discharge of its public duties, places mere business communications above those relating to the most intimate and sacred relations of life and touching the deepest and tenderest feelings of the human heart, and that if the company is to be held merely liable for the fee which has been paid, it may prefer commercial messages to messages announcing the sickness or death of near relatives, and throw the latter into the waste basket, or refuse to transmit them at all and then return the fee on being challenged with dereliction, and thereby absolve themselves from all damages.

There are, generally speaking, but two sources from which the courts of this nation derive their rules and power to adjudicate between litigants. The first is the unwritten or common law, and the second is the written or statute law. If a cause of action and the right to relief is claimed and the suitor is unable to point to either a written or an unwritten law giving the right to that which he claims, it cannot be other than a safe proposition to hold that his right does not exist. If the right is not found in the common law, courts lack the power to place it there. Authority to supply it is vested in the Legislature, or as this court said in the case of State ex rel. v. Huston et al., 21 Okl. 782, 815 97 P. 982, 995: "The question involved before us is simply one of law, not of policy. It is our duty to declare the law as we find it, whether or not we agree as to its policies or purposes. If the law does not meet the approval of the people, they alone, either through the Legislature or the initiative, have the power to change it, not the courts. Judicial legislation is not in accord with popular institutions. Everything in nature legislative, when not incidental to judicial administration, is by express provision denied to the judiciary." In this case it is not claimed on the part of counsel for plaintiff that any statute grants the relief here demanded. The claim is made that the right comes from the unwritten or common law, and it is to this claim that we shall now address ourselves. One of the best considered, if not the leading case on this question allowing recovery, is from the Supreme Court of Iowa, Mentzer v. Telegraph Co., supra. In that case the court specifically disclaims that at common law mental anguish and suffering resulting from mere negligence, unaccompanied with injuries to the person, could be made the basis of an action for damages. But, it is stated by the learned court that there are exceptions to the rule and that a telegraph company by reason of its peculiar duties renders it an exception, and that one of the crowning glories of the common law has been its elasticity, and its adaptability to new conditions and new states of fact. We are unable to agree with the doctrine announced, for as we view it, it is not just sound because it makes the application of a rule of law depend upon the person upon whom it is to operate rather than upon the facts which give rise to its operation. This, carried to its logical conclusions, would make one rule of law for one person and another for another person on the same state of facts, which in the end would destroy and annihilate all systems of order. If the right to the damages is lacking...